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Second Appeal from Order No. 96 of 1964, decided on 1st March 1965.

S. 144‑Provision based on principle that no party shall suffer for "act of Court‑ Such "act of Court" may be of a Court from Court of first instance to highest Court which finally disposes of case‑Provision of S. 144 does not confer but merely specifies methods by which right of restoration can be enforced‑Decree varied or reversed in appeal‑Restitution of property follows automatically ‑ Specific direction by appellate Court for restitution, in such case, not necessary‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13.

Jai Berham and others v. Kedarnath Marwari and others A I R 1922 P C 269; Rohani Raman Dhwaj Prashad Singh v. Harprasad Singh A I R 1943 P C 189; Safaraddi and another v. Durga- prosadsen and others 16 I C 966 and The National Telephone Company Ltd. v. Post Master General No. 2 (1913) A C 546 ref:

-----Ss. 13, 15 & 17‑Section 17 provides machinery for executing order passed in appeal under S. 15‑Appeal from order of Rent Controller directing eviction of tenant under S. 13(6)‑Pending appeal landlord obtaining possession of premises in execution of order‑Appellate Court, however, reversing order and remanding case back to Rent Controller‑Tenant, in such case, entitled to obtain restitution 6f premises under S. 144, C. P. C.‑Civil Procedure Code (V of 1908), S. 144.

K. P. S. Thangaswamy Chetttar v. A. Bapoo Sahib A I R 1951 Mad. 802 rel.

Ihsan‑ul‑Haq for Appellant.

Nemo for Respondent.

Date of hearing: 2nd February 1965.

On 24th of April 1962, Mr. Masud Ahmad Ansari, Rent Controller, Gujranwala struck off the defence of the respondent in proceedings for the ejectment from the upper storey of house No. B. XII‑5‑S‑21, situated in Mohallah Krishnagar, Gujranwala under section 13 (6) of the West Pakistan Rent Restriction Ordinance, 1959, (hereinafter referred to as Ordinance) and ordered his eviction from the house forthwith. This order was reversed by the learned District Judge, Gujranwala on appeal by the tenant on 12th of September 1962, who remanded the case to the Rent Controller with certain directions. Meanwhile, on 26th of May 1962, the appellant had taken possession of the upper storey of the house from the respondent in execution of the order of ejectment passed in his favour by the Rent Controller. After the remand, the tenant applied to the Rent Controller for the restitution of the possession of the house which had been illegally delivered to the appellant. On 14th of December 1963, the learned Rent Controller, Gujranwala held that the order of his predecessor, directing the summary eviction of the respondent, is no longer existing, that the tenant has a right to be put back into possession of the property in dispute and in the result he accepted the application of the respondent for the' restitution and directed that he should be put into possession of the upper storey of the property in dispute. Consequently he issued a warrant for the possession in favour of the respondent. The landlord filed an appeal against that order which was, however, rejected by the learned District Judge, Gujranwala, on 21st of February 1964, on the ground that in view of section 144, C. P. C., the respondent was perfectly justified in applying to the Rent Controller for restitution of the possession of the property in dispute. This is a second appeal by the landlord against the order of the restoration of the possession of the house in dispute to the respondent.

2. Neither the respondent nor his learned counsel has appeared before me. I have, however, heard the learned counsel for the appellant and find no force in his arguments.

3. It has been strenuously argued before me that the Rent Controller in the exercise of the limited scope of the special jurisdiction conferred on him was not competent to direct the restitution of the possession of the property back to, the tenant inasmuch as the provisions of section 144 of the Code of Civil Procedure are not at all applicable to the case. It is stressed by the learned counsel for the appellant that the respondent, if at all he has any right, must file a separate suit for the delivery of the possession of the property back to him. This argument appears to me to be misconceived. Under section 13 of the Ordinance, the Rent Controller is vested with powers to make orders directing the ejectments of the tenants. These orders are open to appeal before the District Judge who is the appellate authority in such cases. Section 17 of the Ordinance provides:‑

"That every order made under section 13, and every order passed on appeal under section 15 shall be executed by a civil Court having jurisdiction in the area as if it were a decree of that Court."

From this, it is manifest that every order passed on appeal is liable to be executed as a decree of a civil Court. When the attention of the learned counsel for the appellant was drawn by me to this provision, he contended that the order passed by the learned District Judge in the present case was not at all capable of execution. According to the learned counsel, the order dated 12th of September 1962, by the District Judge, Gujranwala, has merely set aside the order passed by the learned Rent Controller and remanded the case to him, and that in it there was no direction for the restoration of the possession to the respondent. It is maintained that the order is directory in its nature and is not capable of execution.

4. The doctrine of the restitution is based upon the cardinal principle of law that the act of the Court should not be allowed to work injury on the suitors. It contemplates a case where property had been received through Court under the order of an authority which 'was later on wholly or partially reversed or varied. In such a case the law imposes an obligation on a party who had received the benefit of the erroneous order to make restitution to the other party for what he had lost, and it is the duty of the Court to enforce that obligation in the interest of justice between the parties. In Jai Berham and others v. Kedarnath Marwari and others (AIR 1922 P C 269), it was remarked:

"One of the first and the highest duty of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression the act of the Court' is used, it does not mean merely the act of the primary Court or that of any intermediate Court of appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case."

Section 144 of the Code of Civil Procedure only embodies this doctrine of restitution and does not confer any new substantive right which an aggrieved party does not possess under the general law. The right of restitution is not derived from section 144 of the Code of Civil Procedure. That section merely specifies one of the methods by which that right can be enforced. In Rohani Raman Dhwaj Prashad Singh v. Harprasad Singh (AIR 1943 PC 189), it was held:‑

"When a decree is varied or reversed in the circumstances giving rise (sic) by way of restitution, the right arises automatically and is claimable under section 144, C. P. C. before the trial Court."

In another case Safaraddi and another v. Durgaprosadsen and others (16 I C 966), it was remarked:‑

"Section 144 of the Code of Civil Procedure and the inherent powers of the Court do not confer on any one new substantive right; they merely provide a more convenient procedure. The right to restitution is not derived from section 144 of the Code of Civil Procedure and the power of the Court to direct restitution is inherent in the Court itself."

5. Coming back to the provisions of section 17 of the Ordinance, it leaves no doubt in my mind that the order dated 12th of September 1962, passed on appeal under section 15 has to be implemented by a civil Court having jurisdiction in the area, as if it was a decree of that Court. I may refer here to the case of The National Telephone Company Ltd. v. Post Master- General No. 2 (AIR 1943 PC 189) where Viscount Haldane L. C., observed:‑

"When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches."

The assistance of the civil Courts is required for the purpose of the implementation of such orders passed under the Ordinance, and the executing Courts have to rely on the Code of Civil Procedure in giving full effect to them. Moreover in my opinion, section 144 of the Code of Civil Procedure is in applicable to the case. This section lays down that:‑

"Where and in so far as an order is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise cause such restitution to be made and will, so far as may be placed the parties in the position which they would have occupied but for a such order or such part thereof as has been varied or reversed and, for that purpose, the Court may make any orders, which are properly substantiated on such variations or reversal."

A reading of this section convinces me that it is not at all necessary that the appellate order should specifically direct the restitution of the property whenever the order passed by the Court of first instance is varied or reversed. The restitution has to follow automatically from the fact that the order is reversed on appeal and in such a case the duty is cast upon the Court put the parties back to their original position. Under similar circumstances, in a case from the Indian jurisdiction reported as K. P. S. Thangaswamy Chettiar v. A. Bapoo Sahib (A I R 1951 Mad. 802), it was held:‑

"That section 8 of Madras Act XV of 1946, provides a machinery for executing orders passed in appeal, the course of the execution is governed by the Code of Civil Procedure.

On the acceptance of the appeal from the decree of the Rent Controller decreeing eviction of the tenant in execution of which decree the landlord had obtained possession, reverses the decree, the tenant can obtain restitution."

6. For the foregoing reasons, I see no force in this appeal which is dismissed. As this order has been passed without hearing the respondent or his learned counsel who has failed to appear before me, I have not awarded any costs of this appeal against the appellant.

K. B. A. Appeal dismissed.

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